Court examines proof needed to establish when employment really ends
Hong Kong's Court of First Instance (High Court) recently dealt with an appeal against conviction where a foreign domestic helper challenged her conviction under section 41 of the Immigration Ordinance for breaching her condition of stay.
The worker argued that immigration authorities wrongly determined when her employment ended.
She maintained that she worked continuously with her employer until just before she approached immigration authorities, despite official records showing her employment had ended almost two years earlier.
The case centred on whether immigration records alone could prove employment termination dates, and whether an employer's direct testimony was necessary to establish when employment actually ended.
The worker arrived in Hong Kong from India on 2 July 2019 as a first-time foreign domestic helper. Her visa conditions specified she could stay until 2 July 2021 or two weeks after employment termination, whichever came earlier.
According to Immigration Department records, they received notification dated 6 July 2020 about her employment contract termination. The department processed this notification by 21 July 2020.
On 6 June 2022, the worker surrendered herself to immigration authorities. Her visa application documentation, marked as Exhibit P5, contained four of her signatures.
In her defence, the worker testified she continued working for her employer until just before surrendering to authorities. She stated she never signed any documents before leaving India.
The court noted discrepancies in her testimony: "According to her evidence, she was terminated 3 days before she surrendered; she worked continuously for this [employer] until early June 2022. However, in her evidence, she said she worked for the [employer] until April or May 2022."
The worker claimed she had no knowledge of her visa conditions as her employer held her passport throughout her stay.
The magistrate found the immigration officers' testimony reliable and accepted the department's certified documentation as evidence under the Evidence Ordinance.
"The documents were certified as true copies of an extract reproduced from the computer records of the Immigration Department, admissible under the Evidence Ordinance," the court noted.
The magistrate rejected the worker's testimony about not signing visa documents, finding this claim inconsistent with the evidence presented.
The court upheld the magistrate's decision that the employer's testimony wasn't necessary to prove employment termination.
"[The worker] must have had notice of her termination to overstay nearly 2 years until she surrendered on 6 June 2022, which was also way beyond the last date of her first contract on 2 July 2021," the court stated.
The court emphasised: "The fact there was no evidence of the [employer] complying with terms upon a termination such as arranging the air tickets or paying the equivalent value of an air ticket home is not fatal to the charge. Even if there had been such a failure to comply with such terms, it did not prove the contract was not terminated."
The appeal against conviction was dismissed, with the court finding: "I too reject as inherently improbable a scenario where [the employer] informed the Immigration Department of her termination yet continue to employ her illegally for another 2 years."
